The Akron Legal News

Login | March 28, 2024

Evidence must show undue, unfair prejudice

DAVID J. ROBINSON
Law Bulletin columnist

Published: March 28, 2017

All relevant evidence is presumed admissible in a criminal trial. However, otherwise relevant evidence may be deemed inadmissible where “its probative value is substantially outweighed by the danger of unfair prejudice.”

So says Illinois Supreme Court Rule 403 (eff. Jan. 1, 2011).

Practitioners too often understand Rule 403 to permit the trial court to exclude otherwise relevant evidence when that evidence is “super” prejudicial to a defendant in a criminal trial.

This, of course, is not the standard.

Such evidence should be excluded only where the probative value of that evidence is substantially outweighed by the danger of “unfair” prejudice. The unfairness of the prejudice is the key.

The 3rd District of the Illinois Appellate Court recently reiterated this point in People v. Gordon, 2017 IL App (3d) 140770, an appeal from a conviction for sexual exploitation of a child.

The defendant complained that the court abused its discretion when it permitted a witness to testify that the defendant had previously suggested demonstrating sexual intercourse for the child victim.

More specifically, the defendant argued that such testimony was irrelevant and, in any event, the risk of undue prejudice substantially outweighed any probative value.

The appellate court rejected the defendant’s arguments.

“Of course, all evidence is prejudicial in that it is intended to impact the fact finder’s decision,” the court noted. “Why would anyone put on evidence at trial that did not prejudice the opponent’s case?” What is important, the court continued, is whether that prejudice is “unfair or undue.”

“Evidence is unduly prejudicial where it ‘will somehow cast a negative light upon a defendant for reasons that have nothing to do with the case on trial.’”

The appellate court concluded that the witness’ testimony was relevant, given that the state was required to show that the defendant acted knowingly. The witness’ testimony that the defendant had previously suggested demonstrating sexual intercourse for the child victim tended to make the fact that the defendant acted knowingly far more probable.

Thus, the testimony — that is, the evidence — was of great probative value with respect to the mental state required to convict.

The appellate court went on to address the element of “unfair” prejudice: “To be sure, [the witness’] testimony did present some danger of unfair prejudice. Evidence that defendant repeatedly stated a desire to engage in sexual intercourse in front of his young son presents a risk of convincing the jury that defendant ‘is a bad person deserving of punishment.’ [Citation omitted.] Such risk, however, is ever-present in cases concerning sexual offenses committed against minors.”

Perhaps Rule 403 can best be understood in the extreme. Any time the state presents a videotape of a defendant committing the crime charged, a jury will almost always convict him on that evidence. Thus, although the probative value of that video evidence is strong, the danger of prejudice to the defendant is absolutely overwhelming.

But Rule 403 does not keep that video out. Why not? Because that prejudice is not “undue or unfair.”

The next time you are faced with a Rule 403 situation, reread Gordon, it will probably carry the day.

David J. Robinson is a lawyer, adjunct professor, author and 4th District deputy director at the state’s attorneys appellate prosecutor.


[Back]